1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ARKEEN EVANS, Case No. 1:22-cv-00291-KES-BAM (PC) 12 Plaintiff, ORDER NOTIFYING PARTIES THAT NINETY-DAY PERIOD WITHIN WHICH TO 13 v. FILE MOTION FOR SUBSTITUTION HAS BEEN TRIGGERED BY FILING OF NOTICE 14 DIAZ, et al., OF SUGGESTION OF DEATH AND PROOF OF SUFFICIENT SERVICE 15 Defendants. (ECF Nos. 58, 59) 16 Motion for Substitution Due: June 11, 2024 17 18 I. Background 19 Plaintiff David Arkeen Evans (“Plaintiff”) is a state prisoner proceeding pro se in this 20 civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended 21 complaint against: (1) Defendants E. Diaz and Ramirez for excessive force in violation of the 22 Eighth Amendment for spraying Plaintiff with OC spray; (2) Defendant Reed for excessive force 23 in violation of the Eighth Amendment for ramming Plaintiff with his riot shield and pinning 24 Plaintiff to a desk; (3) Defendants E. Diaz and Ramirez for excessive force in violation of the 25 Eighth Amendment for applying excessively tight ankle restraints and dragging Plaintiff by the 26 chain of the shackles into the hallway; (4) Defendants Martin, E. Diaz, Ramirez, and Marin for 27 excessive force in violation of the Eighth Amendment for beating Plaintiff with batons in the 28 hallway; (5) Defendants A. Aguilar and E. Figueroa for failure to intervene in violation of the 1 Eighth Amendment; (6) Defendant Bradford for deliberate indifference to serious medical needs 2 in violation of the Eighth Amendment for refusing to admit Plaintiff to a suicide crisis bed after 3 Plaintiff swallowed two razor blades with the intent of killing himself; and (8) Defendants 4 Stanley, Arrozola, and Aguilar for unconstitutional conditions of confinement in violation of the 5 Eighth Amendment. 6 On April 10, 2023, the Court received information from the United States Marshals 7 Service (“USMS”) that Defendant Anthony Reed died in 2021 from complications related to 8 COVID. (ECF No. 27.) Plaintiff filed a notice of suggestion of death, including the names and 9 last known addresses for Defendant Reed’s non-party successors, Mackenzie Odle Fey and C.R., 10 on February 23, 2024. (ECF No. 56.) On February 27, 2024, the Court directed the USMS to 11 personally serve the non-party successors of Defendant Reed with Plaintiff’s notice of suggestion 12 of death. (ECF No. 57.) 13 On March 8, 2024, the USMS filed USM-285 forms indicating that personal service of the 14 notice of suggestion of death had been executed on Defendant Reed’s non-party successors on 15 March 6, 2024. (ECF Nos. 58, 59.) The USMS further informed the Court that one of Defendant 16 Reed’s successors is a minor.1 17 II. Motion for Substitution 18 Federal Rule of Civil Procedure 25(a)(1) provides for the dismissal of Defendant Reed 19 from this action if a motion for substitution is not made within ninety days after service of a 20 statement noting Defendant Reed’s death. Fed. R. Civ. P. 25(a)(1). Two things are required of a 21 party for the running of the ninety-day period to commence: a party must 1) formally suggest the 22 death of the party on the record, and 2) serve the suggestion of death on the other parties and the 23 nonparty successors or representatives of the deceased. Barlow v. Ground, 39 F.3d 231, 233 (9th 24 Cir. 1994). In order for the ninety-day period for substitution to be triggered, a party must 25 formally suggest the death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve
26 1 As explained in the Court’s March 13, 2024 minute order, pursuant to Federal Rule of Civil Procedure 5.2(d) and Local Rule 140(a)(i), Defendant Reed’s minor non-party successor shall be identified in all future filings and orders 27 using only the initials C.R. (ECF No. 60.) The Court further notes that should C.R. be substituted as a successor for Defendant Reed, the parties should be prepared to address whether appointment of a guardian ad litem is necessary 28 pursuant to Local Rule 202(a). 1 other parties and nonparty successors or representatives of the deceased with a suggestion of 2 death in the same manner as required for service of the motion to substitute, Fed. R. Civ. P. 3 25(a)(3). Thus, a party may be served with the suggestion of death by service on his or her 4 attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased party 5 must be served the suggestion of death in the manner provided by Rule 4 for the service of a 6 summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232–34. Rule 25 requires dismissal 7 absent a motion for substitution within the ninety-day period only if the statement of death was 8 properly served. Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 469–71 (2d Cir. 1998). 9 On March 8, 2024, the USMS filed USM-285 forms indicating that personal service of the 10 notice of suggestion of death had been executed on Defendant Reed’s non-party successors on 11 March 6, 2024. (ECF Nos. 58, 59.) The USMS further informed the Court that one of Defendant 12 Reed’s successors is a minor. 13 The USM-285 forms indicate that personal service of Plaintiff’s notice of suggestion of 14 death was executed on Mackenzie Odle Fey and C.R. on March 6, 2024, and the USM-285 forms 15 were filed with the Court on March 8, 2024. However, as it appears Plaintiff was not served with 16 notice that personal service had been executed, the Court finds that the ninety-day period for 17 filing a motion for substitution of Defendant Reed was not triggered until the date of service of 18 the Court’s March 13, 2024 minute order, (ECF No. 60). 19 Accordingly, any motion for substitution (filed by any party), must be filed within ninety 20 (90) days from the date of service of the Court’s March 13, 2024 minute order, or June 11, 2024. 21 Further, any motion for substitution shall be supported by briefing and adequate 22 supporting documentation for the Court to determine and verify that the identified 23 individuals are the proper successor(s) or representative(s) under applicable probate or 24 intestate succession law.2 25
2 Under California law, a cause of action against a decedent that survives may be asserted against the decedent’s 26 personal representative or, to the extent provided by statute, against the decedent’s successor in interest. Cal. Civ. Proc. Code § 377.40. A decedent’s successor in interest is defined as “the beneficiary of the decedent’s estate or 27 other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” Cal. Civ. Proc. Code § 377.11.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ARKEEN EVANS, Case No. 1:22-cv-00291-KES-BAM (PC) 12 Plaintiff, ORDER NOTIFYING PARTIES THAT NINETY-DAY PERIOD WITHIN WHICH TO 13 v. FILE MOTION FOR SUBSTITUTION HAS BEEN TRIGGERED BY FILING OF NOTICE 14 DIAZ, et al., OF SUGGESTION OF DEATH AND PROOF OF SUFFICIENT SERVICE 15 Defendants. (ECF Nos. 58, 59) 16 Motion for Substitution Due: June 11, 2024 17 18 I. Background 19 Plaintiff David Arkeen Evans (“Plaintiff”) is a state prisoner proceeding pro se in this 20 civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended 21 complaint against: (1) Defendants E. Diaz and Ramirez for excessive force in violation of the 22 Eighth Amendment for spraying Plaintiff with OC spray; (2) Defendant Reed for excessive force 23 in violation of the Eighth Amendment for ramming Plaintiff with his riot shield and pinning 24 Plaintiff to a desk; (3) Defendants E. Diaz and Ramirez for excessive force in violation of the 25 Eighth Amendment for applying excessively tight ankle restraints and dragging Plaintiff by the 26 chain of the shackles into the hallway; (4) Defendants Martin, E. Diaz, Ramirez, and Marin for 27 excessive force in violation of the Eighth Amendment for beating Plaintiff with batons in the 28 hallway; (5) Defendants A. Aguilar and E. Figueroa for failure to intervene in violation of the 1 Eighth Amendment; (6) Defendant Bradford for deliberate indifference to serious medical needs 2 in violation of the Eighth Amendment for refusing to admit Plaintiff to a suicide crisis bed after 3 Plaintiff swallowed two razor blades with the intent of killing himself; and (8) Defendants 4 Stanley, Arrozola, and Aguilar for unconstitutional conditions of confinement in violation of the 5 Eighth Amendment. 6 On April 10, 2023, the Court received information from the United States Marshals 7 Service (“USMS”) that Defendant Anthony Reed died in 2021 from complications related to 8 COVID. (ECF No. 27.) Plaintiff filed a notice of suggestion of death, including the names and 9 last known addresses for Defendant Reed’s non-party successors, Mackenzie Odle Fey and C.R., 10 on February 23, 2024. (ECF No. 56.) On February 27, 2024, the Court directed the USMS to 11 personally serve the non-party successors of Defendant Reed with Plaintiff’s notice of suggestion 12 of death. (ECF No. 57.) 13 On March 8, 2024, the USMS filed USM-285 forms indicating that personal service of the 14 notice of suggestion of death had been executed on Defendant Reed’s non-party successors on 15 March 6, 2024. (ECF Nos. 58, 59.) The USMS further informed the Court that one of Defendant 16 Reed’s successors is a minor.1 17 II. Motion for Substitution 18 Federal Rule of Civil Procedure 25(a)(1) provides for the dismissal of Defendant Reed 19 from this action if a motion for substitution is not made within ninety days after service of a 20 statement noting Defendant Reed’s death. Fed. R. Civ. P. 25(a)(1). Two things are required of a 21 party for the running of the ninety-day period to commence: a party must 1) formally suggest the 22 death of the party on the record, and 2) serve the suggestion of death on the other parties and the 23 nonparty successors or representatives of the deceased. Barlow v. Ground, 39 F.3d 231, 233 (9th 24 Cir. 1994). In order for the ninety-day period for substitution to be triggered, a party must 25 formally suggest the death of the party upon the record, Fed. R. Civ. P. 25(a)(1), and must serve
26 1 As explained in the Court’s March 13, 2024 minute order, pursuant to Federal Rule of Civil Procedure 5.2(d) and Local Rule 140(a)(i), Defendant Reed’s minor non-party successor shall be identified in all future filings and orders 27 using only the initials C.R. (ECF No. 60.) The Court further notes that should C.R. be substituted as a successor for Defendant Reed, the parties should be prepared to address whether appointment of a guardian ad litem is necessary 28 pursuant to Local Rule 202(a). 1 other parties and nonparty successors or representatives of the deceased with a suggestion of 2 death in the same manner as required for service of the motion to substitute, Fed. R. Civ. P. 3 25(a)(3). Thus, a party may be served with the suggestion of death by service on his or her 4 attorney, Fed. R. Civ. P. 5(b), while non-party successors or representatives of the deceased party 5 must be served the suggestion of death in the manner provided by Rule 4 for the service of a 6 summons. Fed. R. Civ. P. 25(a)(3); Barlow, 39 F.3d at 232–34. Rule 25 requires dismissal 7 absent a motion for substitution within the ninety-day period only if the statement of death was 8 properly served. Unicorn Tales, Inc., v. Bannerjee, 138 F.3d 467, 469–71 (2d Cir. 1998). 9 On March 8, 2024, the USMS filed USM-285 forms indicating that personal service of the 10 notice of suggestion of death had been executed on Defendant Reed’s non-party successors on 11 March 6, 2024. (ECF Nos. 58, 59.) The USMS further informed the Court that one of Defendant 12 Reed’s successors is a minor. 13 The USM-285 forms indicate that personal service of Plaintiff’s notice of suggestion of 14 death was executed on Mackenzie Odle Fey and C.R. on March 6, 2024, and the USM-285 forms 15 were filed with the Court on March 8, 2024. However, as it appears Plaintiff was not served with 16 notice that personal service had been executed, the Court finds that the ninety-day period for 17 filing a motion for substitution of Defendant Reed was not triggered until the date of service of 18 the Court’s March 13, 2024 minute order, (ECF No. 60). 19 Accordingly, any motion for substitution (filed by any party), must be filed within ninety 20 (90) days from the date of service of the Court’s March 13, 2024 minute order, or June 11, 2024. 21 Further, any motion for substitution shall be supported by briefing and adequate 22 supporting documentation for the Court to determine and verify that the identified 23 individuals are the proper successor(s) or representative(s) under applicable probate or 24 intestate succession law.2 25
2 Under California law, a cause of action against a decedent that survives may be asserted against the decedent’s 26 personal representative or, to the extent provided by statute, against the decedent’s successor in interest. Cal. Civ. Proc. Code § 377.40. A decedent’s successor in interest is defined as “the beneficiary of the decedent’s estate or 27 other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action.” Cal. Civ. Proc. Code § 377.11. Section 377.10 defines the term “beneficiary of the decedent’s 28 estate.” 1 As with the notice of suggestion of death, any motion for substitution must be served on 2 the non-party successors or representatives of Defendant Reed as required by Federal Rule of 3 Civil Procedure 4, by personal service. Fed. R. Civ. P. 25(a)(3). The Court notes that although 4 Plaintiff is not proceeding in forma pauperis in this action, he may again file a request for a court 5 order that personal service be made by the United States Marshals Service pursuant to Federal 6 Rule of Civil Procedure 4(c)(3). 7 III. Order 8 Based on the foregoing, the Court HEREBY ORDERS as follows: 9 1. The parties are NOTIFIED that the ninety-day period for substitution of Defendant Reed 10 pursuant to Rule 25(a)(1) has been triggered by Plaintiff’s notice of suggestion of death 11 and proof of service on Mackenzie Odle Fey and C.R., (ECF Nos. 56, 58, 59); 12 2. Any motion for substitution of Defendant Reed, made by any party, SHALL be filed and 13 served on all parties and personally served on the non-party successors or representatives 14 of Defendant Reed, on or before June 11, 2024; and 15 3. If no motion for substitution of Defendant Reed is filed by any party, Defendant 16 Reed will be dismissed from this action pursuant to Federal Rule of Civil Procedure 17 25(a)(1). 18 IT IS SO ORDERED. 19
20 Dated: April 10, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21
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